Loyola of Los Angeles Entertainment Law Review Music

Loyola of Los Angeles Entertainment Law Review Volume 5 Number 1 Article 9 1-1-1985 Music Linda Kimbell Follow this and additional works at: https://digitalcommons.lmu.edu/elr Part of the Law Commons Recommended Citation Linda Kimbell, Music, 5 Loy. L.A. Ent. L. Rev. 245 (1985). Available at: https://digitalcommons.lmu.edu/elr/vol5/iss1/9 This Notes and Comments is brought to you for free and open access by the Law Reviews at Digital Commons @ Loyola Marymount University and Loyola Law School. It has been accepted for inclusion in Loyola of Los Angeles Entertainment Law Review by an authorized administrator of Digital Commons@Loyola Marymount University and Loyola Law School. For more information, please contact [email protected]. V. Music A. Copyright 1. Copyright Infringement: Temporal Remoteness Is No Defense ABKCO Music, Inc. v. HarrisongsMusic, Ltd. 1 is the fourth round of litigation involving claims of copyright infringement against George Harrison, formerly of the Beatles. The first round began in 1971, when Bright Tunes Music Corporation brought an action against Harrison claiming that his song, "My Sweet Lord" infringed upon its copyright in the song "He's So Fine" by Ronald Mack. The case went to trial in 1976.2 In order to prevail in a copyright infringement action, the plaintiff must prove the defendant copied the protected work.3 Since the plaintiff rarely has direct evidence of copying, the courts allow proof by circumstantial evidence. Two methods are permissible: (1) evidence that the defendant's work is substantially similar to the plaintiff's; and (2) evidence of the defendant's access to the plaintiff's work.4 These two types of circumstantial evidence give rise to an inference of copying. 5 Substantial similarity6 can be proven by either of two methods: ex- 1. 722 F.2d 988 (2d Cir. 1983). 2. Bright Tunes Music Corp. v. Harrisongs Music, Ltd., 420 F. Supp. 177 (S.D.N.Y. 1976). The district court found that Harrison had infringed the copyright of "He's So Fine" and set a trial date on the issue of damages. In 1973, a second action was brought in England by The Peter Maurice Music Co. which had the worldwide rights, with the exceptions of the United States and Canada, to "He's So Fine." The parties reached a settlement in this action in 1977. Damages were assessed in ABKCO Music, Inc. v. Harrisongs Music, Ltd., 508 F. Supp. 798 (S.D.N.Y. 1981). By the time of the damages trial, Allen B. Klein, the Beatles' former manager and president of ABKCO, had purchased Bright Tunes' copyright in "He's So Fine" and its rights in the litigation. Harrison asserted affirmative defenses and counterclaims for breach of fiduciary duty and requested ABKCO's disqualification from recovering damages. The district judge awarded damages of $587,000 to ABKCO, the amount Klein had paid for Bright Tunes' assets, to be held in a constructive trust in Harrison's favor and to be trans- ferred to him upon payment of the amount of damages. In ABKCO Music, ABKCO appealed the decision on breach of fiduciary duty and Harrison cross-appealed on the liability issue. 3. Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946) (defendant's summary judgment in copyright infringement action modified in part and reversed in part on, among others, grounds that trial is appropriate in plagiarism suit). 4. Id. 5. Id. 6. The amount of similarity that constitutes substantial similarity eludes quantification. The similarity must involve the expression of ideas and not the ideas themselves. Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir. 1930), cert. denied, 282 U.S. 902 (1931) (suit by author of "Abie's Irish Rose" claiming infringement by defendant's movie "The Co- hens and The Kellys;" held, no infringement); Warner Bros., Inc. v. American Broadcasting LOYOLA ENTER TAINMENT LAW JOURNAL [Vol. 5 pert testimony or the audience test.7 At the liability trial, experts testified as to the unique character of the arrangement of musical motifs in the two songs. Harrison's own expert testified that even though the indi- vidual motifs were not unusual, he had never before come across this particular sequence.' Stating it was obvious to the listener that the two songs were virtually identical, the district court found there was substantial similarity between "He's So Fine" and "My Sweet Lord."9 Access is defined as the opportunity to copy the infringed work.10 "He's So Fine" was a popular song when it was released. It was number one on the Billboard charts in the United States for five weeks and a top- ten hit in England for seven. This widespread dissemination, along with Harrison's testimony that he remembered hearing the song, was crucial to the court's determination that Harrison had the opportunity to copy the song and thus, had access." The court accepted that Harrison had not consciously used the theme from "He's So Fine" in composing his own song.12 However, lack of intentional copying was no defense.13 His action constituted copyright infringement however subconsciously it was done. 14 Co., 720 F.2d 231 (2d Cir. 1983) (character Ralph Hinkley in "The Greatest American Hero" held not to infringe upon the character Superman). Professor Nimmer has categorized two types of similarity: comprehensive non-literal similarity and fragmented literal similarity. In the former, the fundamental essence or structure of a work is duplicated. In the latter, a portion of the work: a line, paragraph or chapter, is copied verbatim. 3 M. NIMMER, NIM- MER ON COPYRIGHT § 13.03[A] (1983). 7. Expert testimony involves a dissection and critical analysis of the works in question to determine whether or not they are similar. The audience test is also called the ordinary ob- server test. This test depends on the spontaneous and immediate reactions of the average reasonable person who has read, heard or seen the works in question. 3 M. NIMMER, NIMMER ON COPYRIGHT § 13.03[E] (1983). See Nichols v. Universal Pictures Corp., 45 F.2d 119 (2d Cir. 1930), cert. denied, 282 U.S. 902 (1931); Sheldon v. Metro-Goldwyn Pictures Corp., 7 F. Supp. 837 (S.D.N.Y. 1934), rev'd, 81 F.2d 49 (2d Cir. 1936) (claim the movie "Letty Lynton" infringed play "Dishonored Lady;" held, no infringement); Sid & Marty Krofft Television Prods., Inc. v. McDonald's Corp., 562 F.2d 1157 (9th Cir. 1977) (claim of infringement by creators of children's program "H.R. Pufnstuf' against defendant's McDonaldland television commercials; held, infringement). 8. Bright Tunes, 420 F. Supp. at 180 n.ll. 9. Id. Writing for the court, Judge Owen stated, "[I]t is perfectly obvious to the listener that in musical terms, the two songs are virtually identical except for one phrase." 10. 3 M. NIMMER, NIMMER ON COPYRIGHT § 13.02[A] (1983). 11. Bright Tunes, 420 F. Supp. at 179. 12. Id. at 180. 13. Nimmer writes that, "[i]nnocent intent should no more constitute a defense in an infringement action than in the case of conversion of tangible personalty." Nimmer distin- guishes three types of innocent intent, one of which is unconscious plagiarism, where the infringer copies but, in good faith, has forgotten the source of his material. 3 M. NIMMER, NIMMER ON COPYRIGHT § 13.08 (1983). 14. Both cases relied on by the court state this proposition. In Fred Fisher, Inc. v. Dilling- 1985] MUSIC Harrison appealed the district court decision in ABKCO Music, " on two grounds. First he argued that the district court had relied on inap- plicable precedent in reaching its decision. 6 "He's So Fine" was recorded in 1962, seven years before Harrison recorded "My Sweet Lord". 7 Harrison contended that his case was distinguishable from both Fred Fisher,Inc. v. Dillingham"8 and Sheldon v. Metro-Goldwyn Pictures Corp., 19 wherein the infringing parties had access to the infringed work shortly before they produced their own. Harrison argued that the "temporal remoteness [between the opportunity to copy "He's So Fine" and the composition of "My Sweet Lord"] preclude[d] a finding of access."20 Harrison contended that his case more closely resembled the facts in Darrell v. Joe Morris Music Co.21 In Darrell, the court held that there was no infringement in spite of the substantial similarity of the songs in question, where the compositions of the two were separated by more than seven and one-half years.22 The Second Circuit rejected Harrison's argument, for several rea- sons. Harrison admitted that he had heard "He's So Fine" in the 1960's. Additionally, the jury could infer access from the widespread dissemination of "He's So Fine."' 23 Finally, the court distinguished Darrell4 from Bright Tunes Music Corp. v. Harrisong'sMusic, Ltd.25 in three ways. First, the repeated themes in Darrellwere trite and likely to recur spon- taneously. Second, the song had very little publicity. Third, the defendant had denied hearing the allegedly infringed upon song.2 6 Harrison's second ground for appeal was that a finding of infringement based on subconscious copying would bring copyright law danger- ham, 298 F. 145, 148 (S.D.N.Y. 1924), Judge Learned Hand wrote, "[It is seldom that a tort, as this is, depends upon the purpose of the wrongdoer." And in Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir.), cert. denied, 298 U.S. 669 (1936), Judge Hand wrote, "[N]obody knows the origin of his inventions; memory and fancy merge even in adults.

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